College of Nurses of Ontario v. Wanda McLaughlin, 2009 ONCNO 92102

PANEL: Dennis Curry, RN Chairperson Shiela Pendock, RN Member Marilyn McGill, RPN Member Lyn Harrington Public Member Abdul Patel Public Member

BETWEEN:

NICK COLEMAN for College of Nurses of Ontario

and - NO REPRESENTATION for Wanda McLaughlin

WANDA MCLAUGHLIN Registration No. GE02024

Heard: June 15, 2009

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 15, 2009 at the College of Nurses of Ontario (“the College”) at Toronto.

As Wanda McLaughlin (the “Member”) was not present, the hearing recessed for 40 minutes to allow time for the Member to appear. Upon reconvening, the panel noted that neither the Member nor a representative of the Member was in attendance.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing. The Panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The Allegations against the Member as stated in the Notice of Hearing are as follows.

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing as a Registered Practical Nurse, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to failing to complete specified remedial measures as directed by the Quality Assurance Committee on or about March 21, 2006.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(19) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing as a Registered Practical Nurse, you contravened a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular, section 82 of the Health Professions Procedural Code and/or section 26 of Ontario Regulation 275/94 of the Nursing Act, 1991, with respect to failing to comp[l]ete specified remedial measures as directed by the Quality Assurance Committee on or about March 21, 2006.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing as a Registered Practical Nurse, you engaged in conduct or performed an act relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to failing to complete specified remedial measures as directed by the Quality Assurance Committee on or about March 21, 2006.

Member’s Plea

The Member was not present nor represented by counsel at the hearing. As a result, the hearing proceeded on the basis that the Member denied the allegations.

Overview

The Member was randomly selected to participate in the Quality Assurance Program. As a result of the Practice Review Written Assessment, the College required the Member to participate in Step 2 – Practice Review Behaviour Based Interview. Regardless of notification and reminders by the Quality Assurance Committee, the Member failed to comply. As specified below, the Panel found that this failure to comply constituted professional misconduct as alleged.

The Evidence

The Panel heard testimony from one witness and 14 Exhibits were entered as evidence.

The witness, [ ] [a] Quality Assurance Administrator in the Practice and Regulatory Policy Department, outlined the process of the Practice Review component of the College’s Quality Assurance Program. She explained that it applies to all nurses, and protects the public interest. She testified that all nurses are required to participate in the Reflective Practice component of the Quality Assurance Program. Some nurses are selected on a random basis to participate in the Practi[c]e Review component. The Member was one of these randomly selected nurses. The program can be a 1-, 2- or 3-step process. Most nurses successfully exit the program following Step 1. The Member was referred to Step 2, Practice Review Behaviour Based Interview, as more in-depth information about her practice was required. At this stage of the process, the Member ceased to participate. No evidence was presented to explain the Member’s reason for discontinuing compliance with the Quality Assurance Program. College counsel had explained at the outset of the hearing that some of the communications between the Member and the College’s assessor were confidential. This may explain the omission of any reasons or response the Member may have given for not continuing with the program.

The exhibits entered and identified by the witness demonstrated the chronology of the events leading up to the allegations in this hearing. In short, the Member was given numerous opportunities to comply with the Quality Assurance Program over a four-month period, but failed to do so.

College Counsel submitted into evidence the Practice Standards Revised 2002 which requires nurses to participate in the Quality Assurance Program and in the Practice Review when selected. He also relied upon s. 82(1) of the Health Professions Procedural Code, which states that every member shall cooperate with the Quality Assurance Committee.

Decision

Following careful consideration of the evidence presented and having regard to the burden and standard of proof, the Panel found that the Member committed professional misconduct as alleged in paragraphs 1 & 2 of the Notice of Hearing. With regard to the allegation in paragraph 3, the Panel found the member’s conduct to be dishonourable and unprofessional.

Reasons for Decision

The Panel found that the burden of proof was on the College to prove the allegations in accordance with the balance of probabilities. The evidence presented was clear and cogent and supported Allegations 1 & 2. With respect to Allegation 3, the Panel found that although the Member’s conduct was dishonourable and unprofessional, it was not disgraceful. In failing to comply with the directives of the Quality Assurance Committee, the Member demonstrated a lack of professionalism and an unwillingness to be governed by the College.

Penalty

Counsel for the College submitted a document entitled “College’s Position on Penalty Order”, which reads as follows.

THE COLLEGE OF NURSES OF ONTARIO (“THE COLLEGE”) SUBMITS that, in view of the circumstances set out in the Panel of the Discipline Committee’s (“the Panel”) findings of professional misconduct, and in light of the Member’s resignation of her certificate of registration, the Panel should make an Order as follows:

Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of three (3) months. The suspension shall take effect from the date that the Member reinstates, renews, or obtains a new certificate of registration and shall continue to run so long as the Member maintains a current registration.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration on the date the Member reinstates, renews, or obtains a new certificate of registration:

a) Requiring the Member to complete the remedial activities as directed by the Quality Assurance Committee (“the QAC”) on March 21, 2006. Until the Director of Professional Conduct (“the Director”) receives confirmation in writing from the QAC that the Member has completed these remedial terms, the Member’s certificate of registration shall remain suspended. The directed remedial activities by the QAC on March 21, 2006, include the following remedial activities:

(i) The Member shall meet with a Practice Consultant to develop a learning plan based on the learning needs identified and remediation suggestions offered within the Practice Review process. The Member shall meet with the Practice Consultant at a time and place agreed to by the Practice Consultant, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

(ii)The Member shall meet with a communications and conflict resolutions specialist (“the Specialist”) that is assigned by the Director of Practice and Policy to review and discuss effective communication and conflict resolution skills and how they should be utilized within professional relationships and when providing care. All costs associated with meeting with the Specialist shall be borne by the Member. The Member shall meet with the Specialist at a time and place agreed to by the Specialist, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

(iii)To obtain a better understanding of self-regulation and Quality Assurance within a regulated health profession, the Member shall meet with a panel of the QAC to present questions relating to the College’s Quality Assurance Program. The Member shall meet with the QAC at a time and place agreed to by the QAC, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

b) The Member shall meet with a Regulatory Expert (“the Expert”) assigned by the Director. All costs associated with meeting with the Expert shall be borne by the Member. The Member shall meet with the Expert at a time and place agreed to by the Expert, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

(i) Prior to her first meeting with the Expert, the Member shall:

(l) provide the Expert with a copy of the Notice of Hearing, the Panel’s Order, and the Panel’s written Decision and Reasons, together with any attachments;

(ll) review the following College publications:

What is CNO? Supporting Members in Self Regulation;
Ethics;
Therapeutic Nurse-Client Relationship; and
Providing Culturally Sensitive Care.

(lll) reflect upon and be prepared to discuss the documents set out in paragraphs 3(b)(i)(I) and (II) as they relate to the conduct for which the Member was found to have committed professional misconduct and the Member’s role and responsibilities as a member of a self-regulating profession.

(ii) At the meeting with the Expert, the Member will discuss:

(l) the materials referred to in paragraph 3(b)(i) as they relate to the conduct for which the Member was found to have committed professional misconduct;

(ll) the Member’s role and responsibilities as a Member of a self-regulating profession; and

(lll) the potential consequences of the Member’s misconduct in the nursing context.

(iii) The Member shall ensure that the Expert provides a written report to the Director within one (1) month of their meeting, confirming that the Member has undergone the requisite meeting stipulated in paragraph 3(b)(i) and (ii) and outlining the content covered at the meeting.

Penalty Submissions

Counsel for the College submitted that its proposed penalty reflects the seriousness of the Member’s conduct and strikes an appropriate balance between punitive and rehabilitative measures. The penalty provides specific deterrence to the Member and general deterrence to the membership, thereby protecting the public.

Penalty Decision

After consideration of College Counsel’s submissions and careful deliberations, the Panel orders the following:

Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of three (3) months. The suspension shall take effect from the date that the Member reinstates, renews, or obtains a new certificate of registration and shall continue to run so long as the Member maintains a current registration.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration on the date the Member reinstates, renews, or obtains a new certificate of registration:

(ii) The Member shall meet with a communications and conflict resolutions specialist (“the Specialist”) that is assigned by the Director of Practice and Policy to review and discuss effective communication and conflict resolution skills and how they should be utilized within professional relationships and when providing care. All costs associated with meeting with the Specialist shall be borne by the Member. The Member shall meet with the Specialist at a time and place agreed to by the Specialist, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

(iii) To obtain a better understanding of self-regulation and Quality Assurance within a regulated health profession, the Member shall meet with a panel of the QAC to present questions relating to the College’s Quality Assurance Program. The Member shall meet with the QAC at a time and place agreed to by the QAC, but no later than three (3) months from the date that the Member reinstates, renews, or obtains a new certificate of registration.

(i) Prior to her first meeting with the Expert, the Member shall:

(l) provide the Expert with a copy of the Notice of Hearing, the Panel’s Order, and the Panel’s written Decision and Reasons, together with any attachments;

(ll) review the following College publications:

What is CNO? Supporting Members in Self Regulation;
Ethics;
Therapeutic Nurse-Client Relationship; and
Providing Culturally Sensitive Care.

(ii) At the meeting with the Expert, the Member will discuss:

(l) the materials referred to in paragraph 3(b)(i) as they relate to the conduct for which the Member was found to have committed professional misconduct;

(ll) the Member’s role and responsibilities as a member of a self- regulating profession; and

(lll)the potential consequences of the Member’s misconduct in the nursing context.

Reasons for Penalty Decision

The Panel finds that noncompliance with the Quality Assurance Committee is of serious concern and demonstrates the Member’s ungovernability. There were no mitigating factors presented due to the absence of the Member at the hearing. Aggravating factors include the Member’s refusal to comply with direction from the Quality Assurance Committee. The suspension provides specific deterrence to the Member. The limitations, terms and conditions provide protection for the public, while providing an avenue for the Member to return to practice should she choose to comply with the Panel’s order.

I, Dennis Curry, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Shiela Pendock, RN Marilyn McGill, RPN Lyn Harrington, Public Member Abdul Patel, Public Member